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Cormier v. United States

United States District Court, E.D. Tennessee, Greeneville

July 24, 2019

JOEL D. CORMIER, Petitioner,



         This matter is before the Court on Petitioner's Supplemental Motion to Vacate, Set Aside or Correct Her Sentence [Doc. 9], the United States' Response to Petitioner's Supplemental Motion to Vacate, Set Aside or Correct Her Sentence [Doc. 12], and Petitioner's Reply [Doc. 14]. For the reasons herein, the Court will deny Petitioner's motion.

         I. Background

         A federal inmate, petitioner Joel D. Cormier pleaded guilty to attempting to persuade a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). [Plea Agreement, Doc. 22, at 1, 2:15-CR-00003].[1] On October 19, 2015, the Court sentenced her to 216 months' imprisonment and a lifetime term of supervised release, and it entered judgment against her on October 22, 2015. [J., Doc. 45, at 1-3, 2:15-CR-00003]. About eleven months later, she filed a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255, and roughly four months after filing this motion, she moved for leave to file a “supplemental motion.” [Pet'r's Suppl. Mot. at 1]. In her own terms, she described her supplemental motion as “superceding” her “original § 2255 motion, ” [id. at 7], and the Court, after granting her leave to file it, ordered the United States to file a responsive pleading, [Order, Doc. 10, at 2].

         In her supplemental motion, she alleges ineffective assistance of counsel, claiming that her attorney, Ms. Rosana Brown, was ineffective-in violation of her constitutional rights under the Sixth Amendment of the United States Constitution-because she did not file an appeal of her sentence. [Pet'r's Suppl. Mot. at 3-9]. She alleges that she “specifically” told Ms. Brown to “file notice of appeal immediately following [her] sentencing on October 19, 2015, ” and that in response, Ms. Brown informed her that an appeal would be futile. [Id. at 3-4]. Ms. Cormier pleads that she then instructed Ms. Brown to appeal her sentence “regardless of the chances of its success or failure, ” but Ms. Brown did not do so. [Id. at 5].

         After reviewing Ms. Cormier's supplemental allegations, the Court determined that she had pleaded sufficient facts to warrant an evidentiary hearing, [2] and it therefore ordered the parties to appear for an evidentiary hearing on March 21, 2019. [Order, Doc. 16, at 1-2]. Under the Criminal Justice Act, 18 U.S.C. § 3006A et seq., the Court appointed counsel to represent Ms. Cormier, who was present in person at the hearing, as was Ms. Brown. [Id.]. Ms. Cormier was the first witness to testify, while Ms. Brown, who was under the rule of sequestration, remained outside the courtroom. [Hr'g Tr. at 4:18-25; 5:1-2 (on file with the Court)].

         At the outset, Ms. Cormier's testimony was largely a reiteration of her allegations. She testified that she had asked Ms. Brown to appeal her sentence immediately after her sentencing hearing, but Ms. Brown responded by telling her that “an appeal wasn't practicable.” [Id. at 6:22-25; 7:1-7]. According to Ms. Cormier, she instructed her to file an appeal anyway, and as the United States Marshals escorted Ms. Cormier from the courtroom, Ms. Brown assured her that they would talk again soon. [Id. at 7:5-7]. Ms. Cormier testified that the day after her hearing she had spoken to Ms. Brown by telephone and again directed her to file an appeal of her sentence, but once more, Ms. Brown told her that an appeal would be of no avail. [Id. at 7:18-25; 8:1-19].

         Ms. Cormier then went on to testify that due to extenuating circumstances-including her intermittent transfer to and from various prisons, her need to remain segregated from other inmates, and her time spent convalescing in a hospital after suffering an attack from another inmate-she did not prepare her § 2255 motion until about a month before § 2255's statute of limitations was set to expire.[3] [Id. at 9:23-25; 10:1; 11:1-13; 12:19-22; 13:3-16; 13:20-25; 14:1-6; 14:12-25; 15:1-4; 16:1-25; 17:1-21; 19:2-11]. With an understanding that “it was imperative to file” a timely § 2255 motion-that is, before the one-year statutory deadline reached its end-Ms. Cormier hurried to procure a standardized “2255 form, ” “completed it to the best of [her] ability, ” and filed it with the Court on September 15, 2016. [Id. at 18:5; 18:18-19; 19:5-8; 19:21-23]. “The ins and outs, the intrinsic details, were as of that point completely lost to me. I just knew I had to get it filed, ” Ms. Cormier testified. [Id. at 18:24-25; 19:1].

         After filing her motion, she devoted herself to “practically living in the law library” and performed “exhaustive research” into the particulars of her case. [Id. at 20:12; 21:5]. From her research, she “discovered . . . certain details about [her] case which required further expounding upon, hence the supplement to the 2255, ” in which, for the first time, she raised her claim of ineffective assistance of counsel based on Ms. Brown's alleged failure to appeal her sentence. [Id. at 20:18-21]. She did not file this supplemental motion, however, until January 26, 2017. According to Ms. Cormier, before filing this motion, she had been unaware that a claim of ineffective assistance of counsel could arise from an attorney's non-observance of a client's request to appeal a sentence. [Id. at 20:22-25; 21:1-5; 29:11-14].

         Although Ms. Cormier was unfamiliar with the legal contours that comprise a claim of ineffective assistance of counsel until she conducted her research, she acknowledged that she became aware of the facts underlying her claim on the day after her sentencing, when she spoke to Ms. Brown by phone:

Q: You were fully aware on October 20, 2015, that Ms. Brown did not intend to file a notice of appeal, correct?
A: That's correct.
Q: Whether you knew the significance of that or not, you knew those facts, didn't you?
A: Yes, sir.
. . . .
Q: Is it fair to say then that the reason you did not include the claim of failure to file the notice of appeal in your September 15, 2016 filing is not because you didn't know any of the facts, but because you didn't know the legal significance of those facts?
A: That is correct.

[Id. at 42:3-9; 45:1-6; see Id. at 8:2-19].

         After Ms. Cormier's testimony, Ms. Brown returned to the courtroom and offered her testimony, which was consistent with Ms. Cormier's on some fronts. Ms. Brown confirmed that she and Ms. Cormier did broach the topic of an appeal immediately after her sentencing hearing, with each of them agreeing to speak further about it by phone once Ms. Cormier returned to prison. [Id. at 52:14-22]. Ms. Brown testified that, within a day or two, they spoke by phone and Ms. Cormier inquired about the prospect of an appeal. [Id. at 53:1-8]. According to Ms. Brown, she stated her opinion that the case, as it related to Ms. Cormier's sentence, lacked appealable issues. [Id. at 53:8].

         But Ms. Brown refuted the idea that Ms. Cormier asked her to appeal her sentence and that she refused to do so. Ms. Brown testified that while she did share with Ms. Cormier her professional opinion that Ms. Cormier's sentence lacked appealable issues, she also explained to Ms. Cormier that she was nevertheless “absolutely obligated” to appeal that sentence if instructed to do so. [Id. at 53:12-17]. According to Ms. Brown, however, Ms. Cormier ultimately “agreed in [her] assessment of the case, ” “decided not to” pursue an appeal, and did not request an appeal at any point afterwards. [Id. at 53:18-25; 54:1; 55:11-13; 57:1-14; 63:14- 17].

         Ms. Brown then testified that she wrote and mailed a letter to Ms. Cormier, with the intention of confirming their conversation. [Id. at 54:1-2]. She produced a copy of this ...

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